Manning v. Houston

Filing 3

MEMORANDUM AND ORDER - Upon initial review of the Petition (Filing No. 1 ), the court preliminarily determines that Claims One, Two, Three, Four, Five, Six, and Seven A, B, D and E, as set forth in this Order, are potentially cognizable in fede ral court. The court determines that Claim Eight C is not cognizable in a federal court habeas action and is therefore dismissed. By September 21, 2012, the respondent shall file a motion for summary judgment or state court records in support of an answer. No discovery shall be undertaken without leave of the court. Ordered by Judge Joseph F. Bataillon. (Copies mailed to Nebraska Attorney General and Respondent as directed) (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
AARON D. MANNING,
)
)
Petitioner,
)
4:12CV3102
)
vs.
)
ORDER ON
)
INITIAL REVIEW
ROBERT P. HOUSTON, Director,
)
(HABEAS CORPUS)
Nebraska Department of Corrections,
)
)
Respondent.
)
This matter is before the court for initial review of the Petition for Writ of Habeas
Corpus (Petition) (Filing No. 1), pursuant to 28. U.S.C. § 2254, filed by the petitioner, Aaron
D. Manning, on May 22, 2012. 28 U.S.C. § 2254 affords habeas corpus relief to “a person
in custody pursuant to the judgment of a State court [who] is in custody in violation of the
Constitution or laws . . . of the United States.” 28 U.S.C. § 2254(a).
The petitioner was convicted of two Class 2 felonies and two attempts of a Class
1/1A/1B felony and sentenced on August 19, 2005, for a minimum of forty years and a
maximum of fifty years. See Filing No. 1 p. 1. The petitioner appealed the judgment to the
Nebraska Court of Appeals but the case was dismissed. Id. at p. 2. The petitioner did not
seek further review by a higher court. Id. at p. 2-3.
On July 30, 2009, the petitioner filed a motion for post-conviction relief in the District
Court of Buffalo County, Nebraska. Id. at 3. The District Court denied the motion on
September 11, 2009. Id. On January 27, 2011, the petitioner filed another motion for
post-conviction relief in the District Court of Buffalo County, Nebraska. Id. at 4. After
review, the District Court determined the Petitioner raised similar issues in his prior
application and denied the motion on February 8, 2011. Id. The petitioner filed a motion
for further review with the Nebraska Court of Appeals on September 14, 2011. Id. The
case was dismissed on September 27, 2011. Id.
The court has conducted an initial review of the Petition to determine whether the
claims made by the petitioner are, when liberally construed, potentially cognizable in
federal court pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Courts (2254 Rules). In the Petition, the petitioner raised one claim,

however the petitioner references attachment two of the Petition, which lists eight claims
with various sub-parts. The petitioner’s claims are set forth below.
Claim One:
The petitioner was denied due process of law because the
petitioner was not notified of his Constitutional rights and was
in custody or under arrest when the petitioner made
incriminating statements;
See Filing No. 1 - Petition Attachment Two p. 11 ¶ 9.
Claim Two:
The petitioner was denied due process of law because law
enforcement continued questioning the petitioner after the
petitioner repeatedly indicated he did not want to make a
statement until his attorney was present;
Id. at 11 ¶ 10.
Claim Three:
The petitioner was denied effective assistance of counsel in
violation of the Sixth Amendment because the petitioner was
not adequately advised of the parameters of the plea
agreement;
Id. at 11 ¶ 11.
Claim Four:
The petitioner was denied due process of law, effective
assistance of counsel, and the right to confront witnesses,
because the petitioner was denied access to exculpatory
evidence as referenced in attachment two of the Petition;
Id. at 12 ¶ 12.
Claim Five:
The petitioner’s right to confrontation was violated because he
was unable to discuss or review his pre-sentence investigative
report to enable him to add or subtract information from the
sentencing judge;
Id. at 17 ¶¶ 13, 15.
Claim Six:
The petitioner was not made aware of information that should
be added to the pre-sentence investigative report because the
county attorney did not comply with discovery;
Id. at 17 ¶ 14.
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Claim Seven:
The petitioner was denied his right to counsel due to
ineffectiveness of counsel because:
A.
The petitioner was denied the right to read
and review the pre-sentence investigative report;
B.
The petitioner’s trial counsel was
ineffective by failing to preserve the record and
issues necessary for a direct appeal or to aide or
assist in the filing of an appeal prior to
withdrawing;
C.
The petitioner’s motions to be allowed to
proceed in forma pauperis and appointed
counsel were denied;
D.
The petitioner’s trial counsel was
ineffective for not providing the petitioner the
right to attend depositions;
E.
The petitioner’s trial counsel neither
researched or investigated the petitioner’s
haziness prior to and during the assaults nor the
fact that Jim Haga could control the petitioner
with hypnotism.
Id. at 17 ¶ 16.
Liberally construed, the court makes a preliminary finding that Claims One, Two,
Three, Four, Five, Six, and Seven A, B, D and E are potentially cognizable in federal court.
However, the court cautions that no determination has been made regarding the merits of
the claim or any defenses thereto or whether there are procedural bars that will prevent the
petitioner from obtaining the relief sought. The court determines that Claim Seven C is
not cognizable in a federal court habeas action because the claim does not state a federal
constitutional claim. Lupien v. Clarke, 403 F.3d 615, 619 (8th Cir. 2005) (“In conducting
habeas review, a federal court is limited to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States”).

IT IS THEREFORE ORDERED:
1.

Upon initial review of the Petition (Filing No. 1), the court preliminarily

determines that Claims One, Two, Three, Four, Five, Six, and Seven A, B, D and E, as set
forth in this Order, are potentially cognizable in federal court.

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2.

The court determines that Claim Eight C is not cognizable in a federal court

habeas action and is therefore dismissed.
3.

The clerk’s office is directed to mail copies of this Memorandum and Order

and the Petition to Respondents and the Nebraska Attorney General by regular first-class
mail.
4.

By September 21, 2012, the respondent shall file a motion for summary

judgment or state court records in support of an answer.
5.

If the respondent elects to file a motion for summary judgment, the following

procedures shall be followed by the respondent and petitioner:
A.

The

motion

for

summary

judgment

shall

be

accompanied by a separate brief, submitted at the time of the
filing of the motion.
B.

The motion for summary judgment shall be supported

by such state court records as are necessary to support the
motion. Those records shall be contained in a separate filing
entitled: “Designation of State Court Records in Support of
Motion for Summary Judgment.”
C.

Copies of the motion for summary judgment, the

designation,

including

state

court

records,

and

the

respondent’s brief shall be served upon the petitioner except
that the respondent is only required to provide the petitioner
with a copy of the specific pages of the record which are cited
in the respondent’s brief. In the event that the designation of
state court records is deemed insufficient by the petitioner, the
petitioner may file a motion with the court requesting additional
documents.

Such motion shall set forth the documents

requested and the reasons the documents are relevant to the
cognizable claims.
D.

No later than 30 days following the filing of the motion

for summary judgment, the petitioner shall file and serve a brief
in opposition to the motion for summary judgment.

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E.

No later than 30 days after the filing of the petitioner’s

brief, the respondent shall file and serve a reply brief. In the
event that the respondent elects not to file a reply brief, he
should inform the court by filing a notice stating that he will not
file a reply brief and that the motion is therefore fully submitted
for decision.
F.

If the motion for summary judgment is denied, the

respondent shall file an answer, a designation and a brief that
complies with terms of this order. (See the following
paragraph.) The documents shall be filed no later than 30
days after the denial of the motion for summary judgment. The
respondent is warned that the failure to file an answer, a
designation and a brief in a timely fashion may result in
the imposition of sanctions, including the release of the
petitioner.
6.

If the respondent elects to file an answer, the following procedures shall be

followed by the respondent and petitioner:
A.

By September 21, 2011, the respondent shall file all

state court records which are relevant to the cognizable claims.
See Rule 5 of the 2254 Rules.

Those records shall be

contained in a separate filing entitled: “Designation of State
Court Records In Support of Answer.”
B.

No later than 30 days after the filing of the relevant state

court records, the respondent shall file an answer. The answer
shall be accompanied by a separate brief, submitted at the
time of the filing of the answer. Both the answer and brief shall
address all matters germane to the case including, but not
limited to, the merits of the petitioner’s allegations that have
survived initial review, and whether any claim is barred by a
failure to exhaust state remedies, a procedural bar,
non-retroactivity, a statute of limitations, or because the

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petition is an unauthorized second or successive petition. See
Rules 5 and 9 of the 2254 Rules.
C.

Copies of the answer, the designation, and the

respondent’s brief shall be served upon the petitioner at the
time they are filed with the court except that the respondent is
only required to provide the petitioner with a copy of the
specific pages of the designated record which are cited in the
respondent’s brief. In the event that the designation of state
court records is deemed insufficient by the petitioner, the
petitioner may file a motion with the court requesting additional
documents.

Such motion shall set forth the documents

requested and the reasons the documents are relevant to the
cognizable claims.
D.

No later than 30 days following the filing of the

respondent’s brief, the petitioner shall file and serve a brief in
response.
E.

No later than 30 days after the filing of the petitioner’s

brief, the respondent shall file and serve a reply brief. In the
event that the respondent elects not to file a reply brief, he
should inform the court by filing a notice stating that he will not
file a reply brief and that the merits of the petition are therefore
fully submitted for decision.
7.

No discovery shall be undertaken without leave of the court. See Rule

6 of the 2254 Rules.
Dated this 22nd day of August, 2012.
BY THE COURT:

s/ Joseph F. Bataillon
United States District Judge

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